AntiPolygraph.org is proposing language for a new, Comprehensive Employee Polygraph Protection Act (CEPPA) that removes all loopholes from the 1988 Employee Polygraph Protection Act (29 USC 22) and increases the civil penalties for violation of the Act:

Passage of the proposed legislation would effectively end all polygraph and other lie detector "testing" in the American workplace with no exceptions, period. I believe that the proposed changes would also make it illegal for employers to take any action against any employee or prospective employee based on the results of any lie detector "test" administered before enactment of the CEPPA.

I invite all to examine the text, and to point out any shortcomings or additional protections that it may be advisable to include.

Next, we must seek out members of the Senate and House of Representatives to sponsor this legislation -- an effort in which I encourage all to participate.

Wonderful George. I have one small suggestion. In part 2005(c)(3), change it to the following:

"The prevailing party shall be entitled to recover its reasonable costs and attorneys fees."

As it stands now, recovery of attorneys fees is up to the discretion of the court. But a litigant who wins should, I believe, recover their attorneys fees as a matter of right, especially since suing the government is so expensive.

"Costs The court, in its discretion, may allow the prevailing party (other than the United States) shall be entitled to recover its reasonable costs, including attorney's fees."

What do you think of this? One effect, I think, would be to discourage frivolous suits against non-federal parties. A second would be to discourage employers from violating the act, and a third might be to increase the willingness of lawyers to represent plaintiffs on contingency. But might there be any unintended consequences in removing the courts' discretion in the award of reasonable costs?

"Costs The court, in its discretion, may allow the prevailing party (other than the United States) shall be entitled to recover its reasonable costs, including attorney's fees."

What do you think of this? One effect, I think, would be to discourage frivolous suits against non-federal parties. A second would be to discourage employers from violating the act, and a third might be to increase the willingness of lawyers to represent plaintiffs on contingency. But might there be any unintended consequences in removing the courts' discretion in the award of reasonable costs?

Although I'm not a lawyer, I would imagine there could be marginal cases wherin it might be better to allow the court to decide on a case-by-case basis. Mark's right, bringing a case is surely costly. However, I had thought recovery of reasonable fees was one of those "insult to injury" rulings that was reserved for especially grievous violations.

Furthermore, by making the recovery automatic, wouldn't that encourage polygraph "ambulance chasing" on the part of some lawyers?

1) Attorneys fees provisions increase the pressure on the parties to settle the case, because the risks of losing are higher. Settlement without trial is generally a good thing, even in the polygraph context. This consideration may not apply to the government, which may not care about shelling out a few more bucks for attorneys fees. There could be an unintended impact in that case law may not be developed under the statute, because so few suits are brought. But see # 2.

2) Not having an attorneys fees provision greatly increases the hurdle for an aggrieved victim. The government knows it can deter suits by forcing the plaintiff to spend lots and lots of money on attorneys fees. An attorneys fees provision counteracts that.

3) The general rule in England is that winner gets attorneys fees. I think it's a sound one. Here, attorneys fees must be authorized by a specific statute or by contract between the parties. It's quite common in contracts, and not uncommon in statutes. Skeptic, it's not an "insult to injury provision"; it's a way of making the winning party whole, and protecting against a Pyrrhic victory, where after winning at trial, the winning party declares bankruptcy.

4) Ambulance chasing is associated with contingency fee cases, not attorneys fees provision. In contingency fee cases, attorneys generally get a third of the award. With attorneys fees provision, attorneys will be paid the same amount for their time; the only question is who pays their bill, their client or the opponent. If suits under this act generate lots of money damages, then lawyers will take them on contingency, attorneys fees provision or not. If suits under this act do not generate large monetary payments, lawyers will not take them on contingency, attorneys fees provision or not.

5) If you leave the award of attorneys fees to the discretion of the court, then that increases the cost of the lawsuit, because after trial, the winning side will brief the court on why it should recover its attorneys fees, and the losing side will oppose it. You can get a mini-litigation after the litigation. Then, if the winning side loses the attorneys fees argument, they are even more in the hole.

I think it's good to be thinking of unintended consequences. Perhaps others may be aware of some, but I think the benefits greatly outweigh any negatives I can think of.

I do have one additional question: why have courts ruled against attorneys fees arguments in the past?

The general rule is no attorneys fees unless specifically authorized by contract or statute. Sometimes there is a question as to whether a particular contract or statute authorizes atty fees or not (one side may argue it's implied). Sometimes attorneys fees disputes arise within the context of an indemnification agreement, which raises multiple issues, e.g. liability, whether a party is entitled to indemnification or not (sometimes indemnification is implied), et al.

It seems to me that because the language of the CEPPA unambiguously prohibits polygraph "testing" by employers, or any reliance on polygraph results, with no exceptions, that litigation under the CEPPA would be exceedingly rare.

Here's another question: I just noticed that "employer," as defined in the CEPPA, would include any agent. Thus, I'm thinking that the addition of "or agent thereof" in Section 2002 is superfluous and should probably be removed. Mark, what do you think?

This thread appears to be 5 years old. Has anything been done with this proposal? If not why?

"Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner's Conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams." (Justice Clarence Thomas writing in United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413, 1998.)

DUE TO THE RIZE OF REMOTE NEURAL MONITORING I AM AFRAID I HAVE TO DISAGREE WITH ABOLISHING THE LIE DETECTOR. A PERSON WOULD HAVE NO WAY OF KNOWING IF FELLOW CO-WORKERS ARE INVOLVED IN SOME FORM OF CONSPIRACY WITHOUT HAVING THIS OPTION.